Opinion
NOT TO BE PUBLISHED
San Diego County Super. Ct. No. SCN211244
AARON, J.
Petition for writ of mandate/prohibition from an order of the Superior Court of San Diego, County, Joel M. Pressman, Jr., Judge. Petition granted.
I.
INTRODUCTION
The People charged Jason Duane Cooper with two counts of murder (Pen. Code, § 187, subd. (a)). Prior to trial, Cooper produced reports of two experts in which the experts expressed the opinion that Cooper lacked the requisite mental state to commit the offenses at the time they were alleged to have been committed. The People then filed a motion seeking an order directing Cooper to submit to a mental examination performed by an expert selected by the People, pursuant to People v. Danis (1973) 31 Cal.App.3d782 (Danis) superseded by statute as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107 (Verdin). The trial court granted the motion.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
Cooper filed a petition for writ of mandate in this court seeking a writ directing the trial court to vacate its order requiring that he submit to a mental examination by an expert chosen by the People. While Cooper's petition was pending, the California Supreme Court issued its opinion in Verdin, supra, 43 Cal.4th 1096. In Verdin, the Supreme Court concluded that Danis and its progeny, which authorize such an examination, are superseded by amendments to California's criminal discovery statutes that were enacted in 1990. (Verdin, supra, 43 Cal.4th at pp. 1106-1107.) We requested that the parties file supplemental briefs regarding the effect of Verdin on the proper disposition of Cooper's petition. In their supplemental brief, the People acknowledge that "the Verdin decision invalidates respondent court's order at issue in this case." The People further concede that "the proper disposition of this case is to grant the petition and order respondent court to vacate its order of February 7, 2008." We agree.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In August, 2006, the People filed an information charging Cooper with, inter alia, two counts of murder (§ 187, subd. (a)). With respect to both murder counts, the People alleged two special circumstance allegations ─ torture (§ 190.2, subd. (a)(18)) and multiple murder (§ 190.2, subd. (a)(3)).
In August 2007, Cooper entered a plea of not guilty by reason of insanity. Shortly thereafter, the trial court appointed two medical doctors pursuant to section 1027, subdivision (a), to perform sanity examinations on Cooper. In September 2007, both experts examined Cooper and found that he was sane at the time of the alleged offenses. Two experts retained by defense counsel, Dr. Clark Clipson and Dr. Alan Abrams, subsequently conducted psychological examinations on Cooper and issued reports opining that he was insane at the time of the commission of the alleged offenses.
Section 1027, subdivision (a) provides in relevant part: "When a defendant pleads not guilty by reason of insanity the court must select and appoint two, and may select and appoint three, psychiatrists, or licensed psychologists who have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders, to examine the defendant and investigate his mental status. It is the duty of the psychiatrists or psychologists so selected and appointed to make the examination and investigation, and to testify, whenever summoned, in any proceeding in which the sanity of the defendant is in question."
On or about January 24, 2008, the People filed a motion seeking an order directing Cooper to submit to a mental examination conducted by an expert selected by the People. In their brief in support of their motion, the People claimed that Cooper would likely present expert testimony regarding his mental state near the time of the alleged offenses. The People stated that in addition to opining on Cooper's sanity at the time of the alleged offenses, Drs. Clipson and Abrams had opined in their reports that Cooper had not formed the requisite mental state for the charged offenses. The People sought "an order from the Court allowing a psychiatric expert to evaluate [Cooper] . . . to address issues of [Cooper's] mental status for purposes of rebuttal during the guilt and sanity phases of this trial."
The People argued that the trial court had the inherent authority to order such an examination pursuant to Danis, supra, 31 Cal.App.3d782. In addition, the People stated that the trial court was authorized to appoint expert witnesses to assist the court or any party regarding a matter upon which expert evidence might be required, pursuant to Evidence Code section 730. The People also argued that if Cooper refused to submit to the proposed examination, the Court should permit the People to introduce this fact in evidence at trial as tending to demonstrate a consciousness of guilt.
Evidence Code section 730 provides in relevant part, "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required. The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court."
Cooper filed an opposition to the People's motion in which he raised numerous arguments as to why the trial court should not grant the motion. Among Cooper's contentions were that the inherent authority rationale discussed in Danis had been legislatively superseded by the passage of Proposition 115 in 1990, which established new statues governing discovery in criminal cases, including section 1054, subdivision (e). Section 1054, subdivision (e) provides in relevant part: "[N]o discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States." Cooper argued that the proposed examination was not authorized pursuant to the criminal discovery statutes or by any other statutory provision, and that it was not mandated by the federal Constitution.
On February 7, the trial court held a hearing on the People's motion. At the hearing, the prosecutor argued that the trial court had the authority to grant the motion pursuant to Danis. The prosecutor also noted that the trial court had the authority to appoint a psychiatric expert on the prosecution's request pursuant to Evidence Code section 730. However, the prosecutor thereafter stated, "We are not asking that the court appoint an expert. . . . We are prepared to hire and pay for our own expert." Among other contentions, Cooper's counsel argued that the court should not follow Danis, in the wake of the amendments to California's discovery statutes enacted pursuant to Proposition 115.
The court orally granted the People's motion, reasoning in part:
"I believe that the People are entitled to a psychiatric evaluation of the defendant after defendant has put his mental state at issue. [¶] And . . . they're entitled to that evaluation under both state and federal law. I don't see this as a violation of the [section] 1054 discovery statutes. I see it as enhancing the fairness of his trial and being able to move with judicial efficiency. [¶] So I will permit the People to . . . designate based upon Danis I will [sic] and appreciate that the People will hire and pay for this expert. . . . [T]he defendant is ordered to submit to a[n] examination and should the defendant refuse to submit to the examination the People will be permitted to comment about that."
Defense counsel requested that the trial court stay its order so as to allow counsel to file a petition with this court. The trial court granted defense counsel's request.
That same day, the trial court entered a written order that states in relevant part:
"Good cause appearing therefor, IT IS HEREBY ORDERED that the defendant, JASON DUANE COOPER, shall undergo a psychological and psychiatric examination by a psychiatrist and psychologist of the People's choosing. [¶] The court further authorizes Park Dietz, M.D. to enter the North County Jail, Vista Detention Facility, to interview and test the defendant, and to tape record and/or videotape the interview."
On February 13, Cooper filed a petition for writ of mandate in this court seeking a writ directing the trial court to vacate its order requiring him to submit to a mental examination. In his petition, Cooper claimed that the trial court erred in ordering the examination. Cooper argued that all discovery in criminal cases is governed by section 1054 et seq., and that the mental examination the trial court ordered is not authorized pursuant to these provisions. Cooper also argued that the trial court's order violates his rights under the state and federal Constitutions. Finally, Cooper noted that the propriety of such an order was likely to be resolved by the Supreme Court in the then pending case, Verdin v. Superior Court, review granted June 14, 2006, S143040.
On March 11, this court stayed all further proceedings in the case and directed the People to file a response to the petition and Cooper to file a reply. On April 23, we granted an order to show cause as to why this court should not grant the relief Cooper requested in his petition. We further directed that, absent objection by May 2, the briefs on file would serve as the return and reply to the order to show cause. No objections were filed.
Although it appears that the trial court's stay of its order may have expired prior to this court's March 11 stay, it is undisputed that Dr. Dietz has not yet examined Cooper.
On July 9, this court requested that the parties submit supplemental briefs regarding the effect of Verdin, supra, 43 Cal.4th 1096, on the proper disposition of this case. Cooper and the People each filed a supplemental brief.
III.
DISCUSSION
The trial court erred in ordering Cooper to submit to a mental examination conducted by an expert retained by the prosecution because such an examination is prohibited by section 1054, subdivision (e)
In light of our conclusion that the trial court's order must be reversed as violating state statutory law, we need not consider Cooper's constitutional arguments. (See Verdin, supra, 43 Cal.4th at p. 1116 [conclusion that trial court's discovery order violates state statutory law "renders it unnecessary to decide whether the trial court's order violates petitioner's constitutional rights"].)
In Verdin, supra, 43 Cal.4th at page 1100, the Supreme Court considered "whether a trial court may order . . . a criminal defendant, to grant access for purposes of a mental examination, not to a court-appointed mental health expert, but to an expert retained by the prosecution." The Verdin court concluded that a trial court may not issue such an order. (Ibid.)
The Verdin court began its analysis by concluding that such an examination constitutes "discovery," within the meaning of California's statutes governing discovery in criminal cases, namely, section 1054 et seq. (Verdin, supra, 43 Cal.4th at p. 1105.) The Verdin court acknowledged that courts in several cases, including Danis, supra, 31 Cal.App.3d782, had held that a trial court may order a defendant who has placed his mental state at issue to undergo a mental examination conducted by an expert retained by the prosecution. (Verdin, supra, 43 Cal.4th at p. 1106.) However, the Verdin court stated that Danis's reasoning that trial courts possess the "inherent power to order such discovery" is "insupportable following the 1990 enactment of section 1054, subdivision (e), which insists that rules permitting prosecutorial discovery be authorized by the criminal discovery statutes or some other statute, or mandated by the United States Constitution." (Verdin, supra, 43 Cal.4th at p. 1107.) The Verdin court thus concluded that Danis and its progeny "have not survived the passage of Proposition 115." (Verdin, supra, 43 Cal.4th at pp. 1106-1107.) The Verdin court further concluded that neither California's criminal discovery statutes, any other statute, nor the United States Constitution authorize a compelled mental examination of a criminal defendant conducted by an expert retained by the prosecution. (Verdin, supra, 43 Cal.4th at p. 1116.)
In this case, the trial court based its order compelling Cooper to submit to a mental examination by an expert selected by the People on the inherent authority rationale espoused in Danis. As the People properly concede, that rationale is unsupportable in the wake of section 1054, subdivision (e) and Verdin. Accordingly, we agree with the People that this court must grant Cooper's petition and direct the trial court to vacate its order compelling Cooper to submit to such an examination.
In their supplemental brief, the People argue that our disposition of this petition should not preclude the People from requesting on remand that the trial court appoint an expert pursuant to Evidence Code section 730 to investigate Cooper's mental state through a compelled psychiatric interview and examination. In his supplemental brief, Cooper argues that it is not legally proper for a trial court to appoint an expert to conduct a mental examination of a criminal defendant pursuant to Evidence Code section 730. While "[t]he People remain free on remand to move the trial court to appoint an expert pursuant to Evidence Code section 730" (Verdin, supra, 43 Cal.4th at p. 1117), we express no opinion regarding whether the trial court is legally authorized to make such an appointment for the purpose of conducting a mental examination of a criminal defendant, nor do we express any opinion on whether the trial court should grant such a request under the circumstances of this case.
IV.
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to (1) vacate its February 7, 2008 order directing Cooper to submit to a mental examination, and (2) enter an order denying the People's January 24, 2008 motion for an order directing the mental evaluation of Cooper. The stay issued by this court on March 11, 2008 is vacated.
WE CONCUR: McCONNELL, P. J. BENKE, J.